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My Mother Has Dementia and I Am Named As The Successor Trustee. Am I Required To Act?

Uncategorized Dec 18, 2018

Watching your mother's dementia progress can be incredibly challenging emotionally, cognitively and physically.  If you are also grappling with legal issues, it can seem overwhelming.  Generally, adult children are trying to balance their parent's independence with the need to protect them from predators.

Generally, when a revocable living trust is set up the person who created the trust also serves as the initial trustee.  The trust document designates a successor trustee to serve as the successor trustee when the original trustee either passes away or becomes incapacitated.  

If you are a successor trustee and you are aware your mother is unable to manage her finances, she may be incapacitated.  The successor trustee does not have an obligation to act from a legal stand point.  The successor trustee does not have any duties or responsibilities under the trust until they agree to accept the appointment as successor trustee.  


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I Just Received A Letter From The IRS And I’m Scared To Open It. What Do I Do?

Uncategorized Dec 16, 2018

Receiving a letter from the Internal Revenue Service is scary.  Your heart skips a beat, your hands sweat and your mind envisions the IRS seizing your bank accounts and home.  You just stare at the letter in your hands with fear in your heart.  

The first thing to do is to take a deep breath and open the letter.  Once it is opened, read the letter.  The IRS generally provides instructions what to do if you disagree with the letter.  Many times IRS notices do not require any further action from you.  This can include letters just notifying you they are still processing your return, are correcting an error on your return or your annual statement.

If you disagree with the letter, send a written letter to the IRS explaining why you disagree and include any supporting documentation that supports your position.  It will take the IRS at least 30 days to respond.  Be sure to keep a copy of the notice and any written correspondence you  send...

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What Do I Need To Demonstrate If I Am Deducting Gambling Losses On My Tax Return?

tax Dec 09, 2018

For many, gambling holds a unique allure.  Whether your game is black jack, craps, slot machines, pai gow poker, or another game, the allure of gambling can be exciting.  The excitement and anticipation of winning can be exhilarating and the disappointment of losing can be devastating.  All gambling income, no matter how small, is taxable income.  

You can take a loss for your gambling losses but only to the extent of your winnings for the same year.  For example, if you lost $40,000 the year and your winnings are $30,000, you would only be allowed to deduct $30,000 in losses.  If you have $40,000 winnings and $30,000 in losses, you would have $10,000 in taxable income.  If you have no winnings but $30,000 in losses, you would not be able to deduct your losses. 

You as the taxpayer have the burden of proof to substantiate your gambling income and losses.  To meet your burden of proof, you must have a log (or similar record) which...

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How Long Do I Have to Contest a Will or Trust in California?

The timeframe to contest a will or trust in California is different for a will than it is for a trust.  It will depend upon whether the document you want to contest is a will or trust.

Contesting Wills

An action to contest a will cannot occur until the will is offered to be admitted to the Court by someone.  Once someone files the will with the Court, the Court can determine whether it is a will or not.  In California, it is not a will until the Court determines the writing to be a will.  The probate process proves up the will and allows the court to administer the will pursuant to the will's terms.  Because of this, there is nothing to contest until the will is offered to the Court and a petition to probate the will is filed.  If someone files a petition to probate the will, you need to file your will before the Court determines it is a valid will.  If you receive a petition for probate to have the will admitted, it is preferable to...

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My Mom Has Dementia And Has Not Created An Estate Plan. What Can I Do?

dementia will Nov 07, 2018

This is a difficult issue for the family.  While you hope your mother has her affairs in order, sadly this is not always the case.  Dealing with a parent who has dementia can be challenging.  Creating an estate plan can be impossible if your parent since dementia can mean your mother lacks the mental capacity to create a will or trust.  Dementia is tricky because it depends upon how much their cognitive ability has deteriorated.  Just because someone has a diagnosis of dementia does not mean they cannot do a will or trust.  

The requisite mental capacity required to execute a will is found in Probate Code 6100.5.   To prepare and execute a will provided that person is over 18 years old and understands the nature of his or her property, his or her relationship with his family and has an understanding of his or her assets.   This is the lowest capacity requirement under the law.  It is possible for someone to have...

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My father has dementia. Can he execute a will?

dementia elder law will Nov 07, 2018

Dementia is a progressive disease which affects mood, behavior and memory.  There are many stages of dementia.  Just because your father has a diagnosis of dementia does not mean he cannot execute a will.  However, it is best to document your father's capacity at the time the will is executed by having your father mental capacity evaluated by a medical professional such as a geriatrician who specializes in dementia.  

In order to execute a will in California, your father needs to have the requisite legal capacity.  If he does not have the legal capacity, the will can be invalidated.  A person has the mental capacity to execute a will if the person has the capacity to understand the nature of the will and its consequences, understand their extent of their property, understand and remember their family and how the will affects those individuals.  

While this sounds like a simple concept, it can be very complex when someone has...

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How Long Does a Trust or Will Contest Take in California?

Generally, it will take at least twelve to twenty-four months for a trust or will contest for the case to proceed to trial.  Of course, this amount of time can change depending upon the various factors of a specific case.  

Some of the factors in a case that may cause it to take longer are:

  • The availability of the court;
  • The time it takes to obtain evidence from third parties;
  • The availability of witnesses; and
  • Motions being filed by a party that the Court must decide before the case can proceed.

After a petition is filed in Court, the hearing is generally about 45-70 days later, depending upon the Court's schedule.  At the initial hearing, the Court determines if there are objections to the petition.  If there are no objections, the Court will grant the petition by signing an order.  If there is an objection by someone but the objection has not been filed in writing, the judge will usually set some deadlines.  The Court then sets the next...

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